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HON. JAS. A. SEDDON, OF YIRGINIA, 



OK THS 



PRESIDENT'S MESSAGE OF AUGUST 6, 1850, CON- 
CERNING TEXAS AND NEW MEXICO. 



DWL.VV1IRK9 



IN THE HOUSE OF REPRESENTATIVES, TUESDAY, AUGUST IS, 1850. 



WASHINGTON: 
raarrn at the congre«sio>i&i, oi.obe OFf iob. 

1850. 






738Q8 



FEDERAL USURPATIONS 



On the President's Message of August 6, 1850, 
concerning Texas and New Mexico. 
The House having resolved itself into Committee of the 
Whole on the state of the Union, and taken up for con- 
aideration the Civil and Diplomatic Appropriation Bill — 

Mr. SEDDON obtained the floor. He said: 

Mr. Chairman: I propose to examine the posi- 
tion assumed by the Executive in his recent mes- 
sage touching the relations of the United States 
and Texas. I wish to do so freely and fearlessly; 
but, at the same time, with candor and with all 
proper respect to the Chief Magistrate of the 
Union. In some of the less important principles 
to which I shall have occasion to refer in the 
course of my remarks, I cordially concur, and I 
take pleasure in bestowing on them the feeble 
tribute of my commendation. I recognize, too, a 
seeming spirit of conciliation, and an urgency for 
the amicable adjustment of this vexed controversy, 
which, as the dictate of wisdom, moderation, and 
patriotism, would be worthy of all praise. But 
most unfortunately, the position of menace as- 
sumed towards Texas, and the high assumption of 
power to coerce her, are in fatal conflict with such 
overtures to harmony, and entirely counteract 
their healing tendencies. 

There are certain principles of the message, Mr. 
Chairman, which I regard as utterly subversive 
of the true relations existing between this Govern- 
ment and the States — usurpative in behalf of the 
Executive of essential powers of his coordinate 
departments, and in their proposed operation on 
the citizen, most oppressive and tyrannical. I 
should fail of a solemn duty to myself and my con- 
stituents, if, notwithstanding great disinclination 
to obtrude on the House at this late period of the 
session, I did not endeavor to establish my opinions. 

The message declares that the proposed ac- 
tion of Texas for the establishment of her ju- 
risdiction over territory recognized by her con- 
stitution as within her rightful limits, will be 
regarded as a combination for the obstruction of 
the laws of the United States too powerful to be 
suppressed by the ordinary course of judicial pro- 
ceedings, or the power vesiedin the narshala; and 
as such, will be supprrssed by the militia and by 
the military and naval forces of the Union, under 
order of the ExecuMve. I wi^h to state this posi- 
tion of the mwsagc fairly; and aa my time will not 



allow me to quote the passages which contain it, I 
challenge dissent from any friend of the Adminis- 
tration present. There is no contradiction, and 
the position is universally conceded. This posi- 
tion involves the direct assertion, that this Govern- 
ment possesses the power to coerce the people of a 
State acting under its authority, and that such 
power is vested in and must be exercised by the 
Executive. I wholly deny this power, as belong- 
ing to any or all of the departments of this Gov- 
ernment. Whence is such power derived .' When 
and how has it been conferred ? Nominally, sir, 
we yet concede the existence of a Federal Consti- 
tution — a chart of the powers pertaining to this 
Government. To it, I must, therefore, of necessi- 
ty, appeal; and yet, in attempting to develop the 
principles on which it rests, I am painfully con- 
scious that, so far as any influence is to be exerted 
on the minds of the fixed majority here, I had as 
well waste words on the marble columns of this 
Hall. So rapid have been the encroachments of 
this Government, so overgrown in its majesty, 
that any efl'^ort to question its authority, and test 
its assumptions, by the Constitution , i^ looked upon 
here as disloyalty and disunion, and is met either 
by the courtier-like smile of derision, or the surly 
rebuke of conscious power. I fear it were as vain 
to expect, in an assembly of sneeringskeptics, rev- 
erence to the authority of Holy Writ, as to hope 
for deference to the Constitution from Representa- 
tives professedly acting under its sanctions and 
sworn to maintain its provisions. 

By that instrument, which should be, however 
it assuredly is not, sacred fVom perversion and in- 
fraction, the powers reposed in this Government 
are conferred by specific grants, and all powers 
not granted are expressly reserved to the States 
and the people. Where, then, is the grant, ex- 
press or implied, of the power to this Govern- 
ment to coerce a State ? I challenge its production 
with confidence. There is none — none whatever, 
either by veto, by judicial process, or by force. Nor 
was this omission by accidentor inadvertence, but, 
as the history of the Convention shows, by design. 
There were in that body able and iniluential men, 
zealous to obtain such grant of authority; and at- 
tempts were msde and reiterated, in'a variety of 
forms and at diflTcrent stages of its deliberations, 
to have such power conferred, but without succeas. 



A brief synopsis of ihe various proposilions for | 
this purpose, I quote from a letter of that revered i 
statesman of the South, John C. Calhoun, whose 
inappreciable loss in this crisis of our affairs yet | 
fills wiih mourning the hearts of our people: J 

"The first project of a constitution Kubmiltcd to the con- j 
veniion, (Governor R^indolph'd,) cmbriic<-d a propcition lo ^j 
grant power 'to negative all laws contrary, in the opinion ii 
'oftJic National Li-gii-lature, to the articles of the Union, or ] 
'any treaty subsi.^tine under the authority of the Union, and !j 
' to call forth the force of Ihe Union against any member ol ! 
'the Union failing to fulfill his duty under the articles there 
'of.' Tlie next project submitted, (Charles I'inckney's) j 
contained a'similar provision. It proposed ' that the legis- | 
'Jtlureof Ihe United Suites; should have the powerto revise | 
' the laws of the several Slates ihit may be supposed to in- 
< fringe the powers exclusively delegated by thii Uonslitu- 1 
'tion to Congress, rtnd to negative and annul such as do.' 
The next was submitted by Mr. Patterson of New Jersey, 
and provided, " If any State, or body of men In any State 
' shall oppose or prevent the carrying into execution such 
'acts or treaties, [of tlie Union,] the Federal Evecntive 
'shall be authorized to call forth the powers of the Confed- 
' erated Stales, or so much thereof as shall be necessary to 
'enforce or compel obedience to such acts or observance 
' of such tieaties.' General Hamilton's next succeeded. 
Which declared 'all laws of the particular Slates contrary 
' to the Constitution or laws of the United States, to he ut- 
' terly void ; and the better to prevent such laws being 
' passed, the Governor or President of each State shall be ' 
' appointed by the General Government, and have a nega- I 
' live on the laws of the State.' 

" At a subsequent period, a proposition was moved and 
referred lo a committee, to provide ' U)at the jurisdiction of 
' the Supreme Court shall exleiid to all controversies between 
'the United States and any individual State.' And at atlill 
later period, it was moved to grant power ' to negative all | 
' laws passed by the several States interfering, in tne opin- j 
' ion of the legislature, with the general harmony and inter- > 
'est of the Union, provided that two-thirds of the n. embers 
' of each House assent to the same.' Which, after an inef- 
fectual elTorl to commit, was withdrawn. " * * These 
proposilions were all moved and failed. ' ■ ■ Sufficient 
to prove conclusively, that the Convention which framed 
the Constitution, was opposed lo granting the power to 
Ihe General Government in any form, Ihiough any of its 
dejinrtmenti', lo coerce or control a Slate, though proposed 
in all conceivable modes, and sustained by the most talenteil 
and influential members." 

Further on, in controverting the idea that such 
power as claimed by many is conferred by the pro- 
visions of tbe Constitution as adopted, Mr. Cal- 
houn adds: 

" I have already stated that a distinct proposition was 
made to confer this very power in controversiy on the Su- 
preme 0«urt, which failed. • • • « This, of it.^elf, 
might to overrule the assumption of the power by constnic- 
tion, unless sustained by the most conclusive arguments. 
But when it Is artdeii, Uiat this proposition was moved (20tli . 
August) subserjuent to the period of adopting the provisions i 
vesting the court with its present powers, (18th July,) anrl | 
Ihat an effoit was made at a still later period (2-2d August) 
to invest Congrrss with a negative on all Slate laws, the 
argument against the powers would seem too conclusive to 
be overiuled by construction." , 

This, Mr. Chairman, should be conclusive. A 
power not granted, but denied, can surely not be 
justly claimed to this Government. But theconclu- 
Bion may be fortified by consideration of the nature 
and organization of our Federal and State systems. 
The governments in both certainly possess only 
delegated powers, and are subject to express limit- 
ations and reservations. As was Justly said on 
yesterday by my able and discriminating friend 
from South Carolina, (Mr. Woodward,] our an- 
cestors were irreconcilably opposed lo unlimited 
government in every form, whether its arbitrary 
powers were reposed in a Monarch or a body of 
Representatives. Our parent country boasted a 
limited monarchy indeed, but its Farliamentclaimed 
to be supreme; and from its claim to exercise such 
mpremaey, sprarg o«r Revolution Where un- 



limited power was lodged, there, it was seen, sover- 
eignty must reside; and with our revolutionary 
sires it was a fundamental principle, that sover- 
eignty rightfully belonged to the people alone of 
every independent State. Hence the great cardi- 
nal conception of American institutions, that law 
emanating from the true sovereigns, the people, 
should reign paramount, not merely over the citi- 
zens governed, but over the governments them- 
selves. That such governments should be dis- 
tinctly, and by organic law, what elsewhere they 
were merely in the speculations of philosophers or 
the dreams of visionaries, mere agencies, or trusts, 
created by express grants, and with strict limita- 
tions of powers. This grand idea ruled in the for- 
mation alike of the Federal and State governments. 
Limitations against the governments of bath kinds, 
and for the preservation of the rights reset ved to the 
people of the respective States, were provided by 
specific grants of power and by prohibitions. Limit- 
ations against the encroachments of each on the 
powers of the other were attempted by the partition 
between them of the attributes generally conceded 
to free governments in such manner as to afford 
each, as far as practicable, means of self protection. 
And finally, limitations within the governments, 
whether Stale or Federal, were sought, by partition 
in the exercise of the powers granted each, between 
its coordinate departments — legislative, executive, 
and judicial. But of what avail all these careful 
arrangements for the limitation of the agencies of 
government thus created to protect the rights re- 
served to the principal — the people — unless io 
them resided the ultimate power of revision, cor- 
rection, and repeal.' The existence of limitations 
and reservations, not merely between the Stale and 
Federal Governments, and their departments re- 
spectively, but against them all in favor of the 
people of the respective Slates, implies, of neces- 
sity, a superior over them, with power to regulate 
and enforce. Else such limitations and reserva- 
tions would be unsusceptible of preservation and 
enforcement, and might with impunily be pros- 
trated or usurped. Such power, as thus shewn to 
be absolutely necessary for the conservation and 
perfection of the system, so is it inevitably in- 
volved and established in the original power of 
creation, and the continuing sovereignty admitted 
by the whole system to abide in the people. Every 
law implies a superior to declare it, a sanction to 
enforce il, and a power to apply that sanction; 
and the higher the law and the more important its 
maintenance, the greater the necessity of such 
power lo regulate and execute it. This train o.*" 
reasoning conclusively places the power and duty 
I of enforcing the restrictions and reservations of 
j our constitutional systems in the body where they 
; emanated, and of course lodges there the right of 
I ultimate judgment as to their due exercise and 
maintenance by the respective governments or 
agencies intrusted with them. Thut body is un- 
deniably Ihe peopU of each State in convention as- 
; sembled, for the historic fact is beyond controversy, 
I that the Federal, no less than the State Govern- 
} ments, was adopted by the people of each State, 
acting separately and independently. Such para- 
mount prerogative of supervision, correction, and 
repteal, in the last resort, is then possessed by the 
people of each Slate acting for itself in convention. 
They constitute the only ultimate sovereign under 
Otti* system. TTie Stale, then, in this its sovereigr 



capacity, instead of being; liable to the coercion of 
the Ffckral Government, has, as to itaelf and 
within its limits, supremacy over and power to 
supervise or abrogate it. Nor does this imply 
any control or right of judgment by one State over 
the others united in compact with it. Equal com- 
petency of control within its limits is allowed to 
each; and in case of difference of judgment and 
inability to accord, as to the proper action of the 
common government, there should be first a call 
of a convention of the States under the provisions 
of the Constitution, to settle its interpretation. If 
to the decisions of such convention, a State can- 
not submit, she must exercise her highest right of 
secession, and hold her sister States as the other 
nations of the world — " Enemies in war: in peace 
friends." 

Having established, I trust, that no supremacy 
and no right of coercion pertains to the Federal 
Government over the States, in their highest ca- 
pacity, I proceed to consider whether it can justly 
elaim such high p^vv-ers over the Stale govern- 
ments. From the citations already made from the 
proceedings of the Convention, it seems that such 
supremacy ai.d power were sought to be estab- 
lished over the State governments as well as the 
States, and in neither instance were accorded. 
Not endowed with such power by specific grant, 
whence does the Federal agency derive its asserted 
superiority over the State governments ? Neither 
the source whence it emanates, the mode in which 
its powers are conferred, the nature and extent of 
those powers, nor the manner of their exercise, 
and the obligations imposed thereby on the citi- 
zen, entitles it to arrogate such superior preten- 
sions. The Federal and the State governments, 
as we have seen, derive their powers from pre- 
cisely the same source — the people of each inde- 
pendent State in convention assembled. The 
mode of conferring powers on the Federal Gov- 
ernment is by specific grant, with express reser- 
vation of powers not bestowed. The mode of 
conferring powers on the State governments is, 
generally, by giving to them the great mass of 
governmental powers, with limited exceptions by 
special prohibitions. The advantage here in the 
mode of bestowal, if of any validity, is clearly 
in favor of the State governments. The nature 
and extent of the powers conferred on the res- 
pective governments, indeed, vary in accordance 
with the different ends to be accomplished by 
them; the few more general and external pow- 
ers, in which all the States are jointly interested, 
being principally conferred on the Federal agent, 
while the great mass of civil and municipal 
powers are retained to the State governments. : 
Hence if some of the powers conferred on the 
Federal Government appear more grand and im- 
posing in their nature, more than compensation ; 
is afforded, in relatively weighing the powers of 
the State governments, by their greater number 
and their more important and intimate relation to 
the interests and pursuits of the citizen. The 
manner in which the powers of both governments j 
are exercised, and the nature of the obligation 
imposed on the citizen, are the same. Both act i, 
directly and compulsorily, ordinarily by law and '' 
through the regular administration of justice on' 
the citizen, and each may enforce its legitimate 
powers by adequate sanctions, and, if necessary, m 
in the last resort by the infliction of the pains ' 



and penalties of treason. One advantage not' 
perhaps, sufficing to give any superiority 
State governments, but certainly strongly repug- 
nant to the conception of subordination on their 
part, is possessed by them in being constituenta 
to some of the most important branches of the 
Federal Government. The Legislatures of the 
States elect the Senators. The States, under the 
regulation of State legislation, either by separate 
districts or by general ticket, send the Representa- 
tives to this body; and, in a compound ratio of 
their representatives in both bodies, constitute the 
constituency which elect your President. 

Judging by these or any other tests you caa 
suggest, must it not be concluded that there is 
certainly no superiority on the part of the Fed- 
eral Government — no subordination on the part 
of the State governments? They are, in fact, 
coordinate agencies of the same common sover- 
eign — of equal dignity, and equally within its 
appropriate sphere embodying the highest law 
of the land. The Federal Constitution, from its 
concurrent adoption by all the States, operates 
over a larger sphere, and embodies a solemQ 
compact by which the powers of each are with- 
in the province of its legitimate functions, blend- 
ed and engaged for the attainment of its ends. 
In its obligation and operation on the citizen 
of each State, however, its authority, sanction, 
and mode of enforcing them, are precisely the 
same. To illustrate this, consider the obliga- 
tion and relation of a citizen of any State — Vir- 
ginia, for instance — to each Government. He is 
bound to obey, maintain, and execute the Consti- 
tution, and laws in conformity therewith, of the 
United States. And why.' Because of its adop- 
tion as their government within its sphere, by the 
people of Virginia in convention assembled. He 
is bound to like obedience and support to the 
State constitution, and laws within its province, 
because so likewise has the same sovereign or- 
dered. The Constitution of the United States, and 
the laws in pursuance thereof, operate upon him 
directly and compulsorily. So likewise precisely 
do those of his State. Each, in subordination 
only to the ultimate sovereign — the people of his 
State — is within its rightful sphere the supreme 
law to him, and must be so recognized and obeyed 
under the sanctions of all adequate penalties, even 
those of treason. Neither is superior. But in case 
of conflict 

Here Mr. DUER interrupted Mr. S., and in- 
quired if that clause in the Constitution of the 
United States, which declares "That the Con- 
' scitution, and laws of the United States made 
' in pursuance thereof, and treaties made under the 
' authority of the United States, shall be the su- 
'. prcme law of the land; and the judges of every 
' State shall be bound thereby, anything in the 
'Constitution or laws ,of any State not .v ithatand- 
' ing," did not impart to the Federal Government 
supremacy ■ 

Mr. SEDDON. The gentleman's citation af- 
fords an answer to his inquiry. That clause shows 
the Federal Government to be snpieme within its 
righifttl sphere — no further. The Constitution of 
the United States, and the laws and treaties in 
conformity therewith, are certainly the supreme 
law of the land, and from the very nature of the 
Constitution must have been equally so, thoti^h 
not declared. But what advantage have they in 







this respect over the Constitution, and laws in pur- 1 
suance thereof, of a State? In Virginia, for in- j 
stance, are not her Constitution, and the laws in i| 
pursuance thereof, within their sphere, just as Ij 
much the supreme law, equally as operative on |] 
the citizen, as are the Consutution and laws of the 
United States. If the force of the State may be 
invoked by the Federal Government to enforce its i 
Constitution, treaties and laws, may not likewise : 
all the forces of the Union be called for by the 
State, to enforce her Constitution and laws within 
her limits? This Government, and all its depart- ' 
ments or officers in their relations to Virgmia, 
or when within her limits, are as much bound to 
respect and obey her Constitution and laws, as 
the Government and officers of Virginia are to re- 
spect and obey as supreme within their sphere 
the Constitution and laws of the United States. 
In either case, the supremacy is dependent on the 
constitutionality of the laws, or of the construction 
placed on the Constitution. 

Here Mr. DUER again interposed, and inquired 
whether, in case of conflict in laws between the 
State and Federal Governments, the adjudication 
of the Supreme Court must not be conclusive as to 
the question of constitutionality? 

Mr. SEDDON resumed. The gentleman with his 
characterisiicsagacity and acuteness,must perceive 
that the solution of his questions is afforded by 
the inquiry, in whom rests the right of ultimate 
judgment as to the powers of the respective gov- 
ernments, and the conformity of their proceedings 
thereto. I deny wholly the power of such ulti- 
mate judgment to the Supreme Court. It has not 
even the power of primarily determining the ex- 
tent of the powers of this Government, much less 
of settling finally the constitutionality of its meas- 
ures. To establish this, many arguments might 
be adduced. I content myself with one or two as 
conclusive: In the first place, the judicial powers 
vested in it are specific grants, involving limita- 
tions and restrictions; and if entitled to construe 
finally its own powers, who are to enforce such 
restrictions, and of what avail are they? Expe- 
rience has shown, that as no men are infallible, the 
Supreme Court may mistake or transcend its just 
powers. To it, then, no less than to the other de- 
partments of the Government, must exist the su- 
perior for supervision and restraint, the necessity 
and existence of which I trust I have heretofore 
satisfactorily established. But, further; there is 
no grant of the power to the Supreme Court in 
the Constitution of such final arbitrament, nor, 
indeed, expressly of any power to decide on ques- 
tions of constitutionality. Its whole function is 
confined to expounding and applying what is law ' 
to cases in law and equity between litigant parties. 
Its faculty of determining on the constitutionality 
of any particular law thus comin? under its con- 
sideration, is not conferred by, nor dependent upon 
any grant of power to it specially, but results 
from and is inseparably incident to its character as 
a court. This faculty pertains not to it alone, but 
belongs equally to every court, from the highest to 
tlielowest, whetherin ourowii or a foreign country, 
having jurisdiction over cases involving the obli- 
gations of our laws. Under our system, the or- 
ganic law of constitutions is supreme, and in any 
case for the determination of what is law, it nmy 
be necessary to expound the meaning of the Con- 
stitution, and the conformity of any iiUeged law 



thereto. A power thus shared by every court, 
from a justice's up, in application to laws coming 
before it in the last resort, can surely with no va- 
lidity be adduced, as conferring the extraordinary 
and conclusive right of judgment as to the powers 
of our respective governments. No, sir; the Fed- 
eral and State governments being coordinate and 
equal in their respective spheres, entitled to enact 
laws of the highest obligation on the citizen, each 
is necessarily entitled to judge, in the first instance, 
of the extent of its powers, and to maintain its 
judgment. This faculty is possessed by the State 
in like manner and upon the same grounds as by 
the Federal Government. 

But in case of conflict in these laws or claims of 
power, must there be collision? Certainly not; for 
war between the State and Federal governmente 
was certainly never contemplated, and cannot be tol- 
erated. What, then, is the resort? I have argued 
to little purpose, if the answer be not prompt and 
decisive: to the common principal of these coordi- 
nate agencies — to the common and only sovereign, 
who created and is entitled to supervise or abrogate 
both or either, the people of the Stale in convention 
assembled. Their decision must be final and con- 
clusive; and by virtue of his sacred duty of alle- 
giance, forever settles, as to the citizen of the 
State, his relations and his obligations to the 
conflicting agencies. About the obligation of the 
citizen to deference and submission to this award 
of the sovereign, if against the State govern- 
ment, I apprehend there is neither dissent nor 
controversy. Nor is it less clear in case the de- 
cision be against the Federal Government, if the 
indisputable fact be borne in mind, that the only 
obligation of the citizen of the State to that Gov- 
ernment proceeds from its like adoption by the 
people of his State in convention assembled. Com- 
plexity and uncertainty can only be induced on 
this point, by confounding the relations of solemn 
compact which exists by the Constitution between 
the States as sovereignties, with the obligations 
imposed under it on the citizens of any State. 
The action of the State in its highest sovereign ca- 
pacity, must be conclusive as against the agency 
created by it, and on the allegiance of its citizens; 
but if deemed by the other States violative of the 
compact with them creating the Federal Govern- 
ment, they, each having for itself equal right of 
judgment, may determine such act cause of com- 
plaint, or even war. But in such case, the State 
resorting to her highest reserved right of secession 
will be out of the Union, and if conflict ensue, it 
must be not that of rebellion or insurrection to the 
Government of the United States, with liability to 
the penalties of treason to the citizen, but of war 
between equal sovereigns. For, as every other 
reason concurs to establish the justice of this con- 
clusion, so likcwi.se does the unhappy relation in 
which, on any other construction, the citizens must 
stand to the two governments, confirm it. A di- 
vided allegiance would be to them an extreme of 
cruelty and oppression, which our ancestors could 
never have contemplated to impose. It is cori- 
ceded the United St.-ites Government is supreme in 
it8spherc,und may punish for treason. So equally, 
that the State government is supreme in its sphere, 
and may enforce the same penalty. In case of 
conflict, the wisest and best, solicitous only for 
the di.scharge of duty, must be traitors to one or 
the other, and he subiecteri to the impulalior and 



penalty of this greatest of crimes. No, sir; alle- 
giance can only be rightfully due to one sovereign — 
the State in its highest capacity; and its award 
absolves the citizen from all olhet obligations, and 
claims his entire duty. 

In establishing the sovereignty of the States and 
the total want of power in the Federal Govern- 
ment to coerce them, I have been betrayed, Mr. 
Chairman, into a more abstract discussion and at 
greater length than I had anticipated. Yet, con- 
sidering tne extraordinary doctrines that have been 
avowed in this message, and the ideas elsewhere 
inculcated of late from high sources of the divided 
allegiance of the citizens of the States and of their 
superior obligations to the Federal Government, 1 
can scarcely regret it. 1 trust it may induce, in 
the South especially, recurrence to fundamental 
principles, and the proud conviction, that the alle- 
giance of the citizen is due, where his instinct, 
his sympathies, and best affections would direct it, 
to his State alone. 

This right of coercion towards a State has been 
heretofore claimed by this Government. It con- 
stituted the pernicious heresy of that high Federal 
paper, the proclamation of General Jackson, 
which has since been so generally reprobated, es- 
pecially in the South. But in essential particulars, 
the pretensions of this message far exceed even 
the assumptions of that proclamation. In the 
first place, as was adverted to by the able gentle- 
man from Georgia, [Mr. Stephens,] General 
Jackson pretended not to assume under the laws 
relied on by Mr. Fillmore, then as now in full 
force, the power to call out the militia and employ 
the naval and military forces to coerce South Car- 
olina. He did not deem them applicable or suffi- 
cient for such purpose, and he accordingly appealed 
to the legislative department for additional laws. 
Congress, then as now, prompt to assert the pre- 
tensions of the Government and strengthen the 
hand of power, passed the notorious Force bill, 
which was reported by no less a personage than Mr. 
Webster himself, who must then at least have 
concurred in the necessity of such additional en- 
actments. But Jackson was not bold enough for 
Mr. Fillmore and his Secretary. They aver that 
tliey can, unaided by further law, step in where 
he feared to tread. 

A distinction yet more material exists in the dif- 
ferent character of the questions, in which the 
two Executives propo.sed to intervene with force 
against a State. That with South Carolina was in 
the execution of laws, operating directly on the citi- 
zens in reference to private rights, and was admitted 
to come within the general purview of a power to 
lay and impose duties, imposts, &c., and to be be- 
yond the ordinary functions of State action. This 
with Texas, is a political question, not afiecting pri- 
vate rights or citizens individually, but a matter of 
jurisdiction and boundary, in which the Stale as a 
unit — an independent sovereign, is only concerned; 
and which it is by the message distinctly admitted, ; 
comes within the scope of her regular State action. 
In the controversy with South Carolina, there was 
difficulty and perplexity induced by the nature of 
the laws sought to be arrested. It was insisted, 
with much plausibility at least, that as the laws, 
being those of revenue, must by the Constitution I 
be uniform, and confessedly came wiilim the terms ' 
of granted power, insomuch that their unconsti- i 
tutionality must be maintained on iin- ground of 



the intention to protect, involved in,but not avowed 
by them, they could not be arrested by the State 
without subverting the revenue system for all the 
other States as well as herself, and without travel- 
ing entirely beyond her competency and the scope 
of her admitted powers. Hence it was insisted 
the compulsory operation of the laws of the Uni- 
ted States might be enforced against the citizens of 
South Carolina, without conflict with her power 
as a State or community, and her laws suspending 
them, treated as a mere nullity. In candor, I must 
say such considerations did not change my con- 
victions, although I admitted the embarrassment m 
which they plunged the question of the right to 
coerce. They seemed to change it from the right 
to coerce a State, merely into a right to enforce the 
law against individual citizens. But my opinion 
was, that the State was in the last resort the right- 
ful judge of the unconstiiutionalily of any laws; 
and being, in the language of the Virginia resolu- 
tions of '98. entitled and " in duty bound, in case 
' of deliberate and dangerous infractions of the Con- 
' stitution, to interpose to arrest the progress of the 
'evil, and to maintain within her limits the author- 
'ities, rights, and liberties appertaining to her," 
acted entirely within her competency in deter- 
mining the mode and measure of redress. 

In the present case, such specious pretences can- 
not be asserted , and no such embarrassment can ex- 
ist. The question is directly with a State-:— a politi- 
cal question, relative to boundary and jurisdiction, 
which are admitted to come within her compe- 
tency. It is no matter of mere private right, nor 
are individuals directly concerned in relation to it. 
The compulsory action of the United States is di- 
rected not against the private citizen, but against 
the civil posse, or the militia of Texas. The 
State, as a political community, is coerced, and her 
citizens, arrayed under the aegis of her authority 
and protection, are deliberately shot down. This 
transcends any foriner assumption of Federal 
power, and claimed, as it is, for the Executive 
alone, how revolting and monstrous does it ap- 
pear! 

This claim, Mr. Chairman, of the Federal Gov- 
ernment to judge and enforce its own powers, 
must inevitably change the whole character of our 
Government from that of a confederated republic 
of States, to a consolidated government of one 
people. If the States, the creators and grantors 
of the limited powers delegated, are not permitted 
to judge and defend the rights reserved to ihem, 
while unlimited power of construction and coer- 
sion are conceded to the mere creature and agent, 
who can fail to predict the speedy accumulation of 
all coveted powers in the hands of the latter? 
Practically it must become a government of un- 
limited powers, a despotism, converting the States 
into mere dependencies and municipalities. The 
mere letter of the Constitution will be a barrier as 
frail as a gossamer web. It behooves, then, all the 
States to maintain, in full validity and extent, the 
power of defending their reserved right.-;; but as 
to the States of the South, possessed of a great 
minority interest, their prosperity, safety, perhaps 
their very existence, is staked upon it. The dom- 
inant majority is, and must be, with the northern 
and free States. Unscrupulous and lustful of pow- 
er, as a majority ever is, we of the South have, 
at this time, the gravest reasons to apprehend ite 
direst encroachments. The malign spirit of abo- 



titionism is spreading with a rapidity and an in- 
tensity that cannot be too vividly realized, instil- 
ling its pernicious persunsives from the cradle of 
infancy to the death-bed of age — engrossing with 
its fell misrepresentations all the avenues to the 
northern mind — working through the school-mas- 
ter, the pulpit, and the press — invoking to its aid 
alike the generous sympathies and invidious feel- 
ings of the masses — it has rooted, almost univer- 
sally, in the convictions of the northern people a 
sentiment of the abhorrent nature and exceeding 
sinfulness of the institutions of the South. This 
sentiment receives aliment and vigor from delusive 
conceptions of popular liberty, even among the 
natives of the North. It is with still more avidity 
embraced and acted upon by the hundreds of 
thousands of foreign emigrants who annually pour 
into the North, wholly uninformed of the nature 
of our institutions, and possessed only by the 
crudest notions of universal liberty and equality. 
Under all these concurring and increasing influen- 
ces, it is hardly strange that this anti-slavery senti- 
ment should have changed from a latent to an 
active operative principle. From private conclaves 
it has passed into popular assemblages. It has 
controlled elections, and been embraced by parties, ; 
until it has found admission and established as- \ 
cendency in the legislative bodies of the North. 
Disregarding all relations of union and fraternity j 
which should subsist between the States, and ; 
overleaping all the restraints of duty and constitu- 
tional obligation, it has embodied itself in acts of 
hostile or invidious legislation in many, and 
among them the most influential States of the 
North. Having accomplished its work in the I 
State governments of the northern section, it has 
intruded its baneful presence in the Halls of Fed- 
eral Legislation. The dominant majority here 
acknowledge its influence, and in one form or 
another, crouch submissive to its mandates. Even 
in that most guarded repository under this Gov- 
ernment of the rights of the States, the Senate, it 
has obtruded in imposing power, and for the ac- | 
complishment of its ruthless ends, has openly 
proclaimed a law of higher obligation than the 
Constitution and the sanctions of a solemn oath. 
Under the specious pretence of freeaoilism, in the 
last and present Congress, it has been engaged I 
by shifting devices, but with unchanging con- i 
sistency of purpose, in plundering the South of 
all rights in the late magnificent acquisition of I 
our common Government, and devoting the whole 
to its grand end of anti-slavery propagandism. Sir, 
all the safeguards of the Constitution — all the bar- 
riers of the South for protection and defence 
^nder this Government, have beenorarc disregard- 
ed and trampled. down. The principle prevails 
with most — is acknowledged by many, that the ^ 
majority in Congress, judging and executing its 
powers, must rule and shall be submitted to. The 
only reliance for security and refuge left, is in the 
jurisdiction and reserved powers of the States. 
They yet receive partial acknowledgment and 
some semblance of respect. Every consideration 
of safety, prosperity, and power, in the present 
and the future, enjoins on the slaveholding States to 
assert and maintain in their full latitude and vigor, 
all the functions of the State governments — all the 
reserved power.s and inalienable sovereignty of the 
States. To rely on their partial representation in j 
the Federal Legislature for protection against the |i 



: steady encroachments of a sectional majority, were 
to rest on a broken reed. It were scarce less 
■ mockery, than would have been a recommendation 
to our fathers of the Revolution to rely on their 
! representation in Parliament, when the astute Eng- 
j lish lawyer made the notable discovery, that all 
the American colonies held of the Crown by the 
tenure of the manor of Earl Greenwich, and that 
consequently the member from that place was the 
representative of all America! In unhappy Ire- 
land, the worst governed and most oppressed, per- 
haps, of christian nations, we have the practical 
example how much such minority representation 
! avails. She is an integral part of the British em- 
; pire, and has her proportion of representatives in 
I Parliament. Yet, since her union, even more than 
I when a mere dependency, have her toiling millions 
groaned in the extremest misery, and on the verge 
of starvation, under the rapacity and misrule of 
the English majority. No, sir; every separate 
community — every great minority interest, to be 
secure, must be able and willing to protect itself. 
The last sheet-anchor of our hopes and safety, is 
I in the States, whose rights must he maintained at 
every hazard. If the pretensions of this message 
; pass into rightful precedent, to rule the future ac- 
i tion of this Government, what security or defence 
for admitted powers remain to the States? When- 
j ever a controversy with any one of them is alleged 
; to exist, or, il may be, is trumped up for sinis- 
ter purposes by the Executive of the Union, is he 
to use the whole power of the Union to main- 
tain the claim, as construed by himself, and to 
crush the State that resists ? Plausible pretences 
I for such controversy are never wanting to the ra- 
pacity of power. They may be found in clauses 
of the Constitution, such as the obligation to guar- 
anty to each Stale a republican form of government, 
and many others. It may, in the progress of abo- 
litionism, be alleged by the Executive, as asserted 
by inany here, that slaveholding governments are 
not republican. By the action of the Government 
I now contemplated here, an example will be set of 
purchasing, with the common funds of the Union, 
the territory claimed by one of the slaveholding 
States, to convert it into free soil. Where will this 
end .' May not next slaves be purchased to make 
further free soil .' And if necessary to find pre- 
1 tences of controversy, may they not be readily 
I found in casual disturbances, incited perhaps for 
I the design of invoking Federal jurisdiction? Ac- 
cording to the late John Q.. Adams, Federal au- 
thority would not then be wanting. The whole 
pretension of coercion of States must be repelled, 
else there is no real safety. 

But, Mr. Chairman, my waning hour compels 
me to forbear from further illustration on this 
point, and to proceed to the consideration of the 
pretences asserted in the message for this extra- 
ordinary claim of power. They seem to me 
untenable, and in direct conflict with otherpositions 
of the same message. The first position in the 
case presented by the President for' his justifica- 
tion is, that Texas can have no juri.^diction in New 
Mexico, because beyond her rightful limits, and in 
the po.ssfssion of the United States. This involves 
necessarily the determination by the President, in 
the fir.st instance, of the rightful boundaries of 
Texas and New Mexico, and of the character and 
extent of the possession of the United States. Yet, 
I understand nim to concede that for the deternai- 



9 



nation of these boundaries, legal adjudication, or | 
the concurrent assent of the United States and 
Texas, is requisite. As there certainly are, and, as I 
I hold, constiiulionally can l)e created no courts I 
of competent jurisdiction to decide the question, 
that alternative may be dismissed from consider- ] 
ation. The competency of Texas to act in this de- ! 
termination of boundaries is admitted to be equal ; 
with that of the United States — her assent being 
equally requisite. He declares, too, until this joint 
settlement be had, no government. State or Territo- j 
rial, can be ri,a;htfully established for Nev/ Mexico. 
This also affirms the equal competency and the 
necessity of the assent of Texas in this matter of 
boundary. The President likewise expressly ad- 1 
mits, that the determination of these boundaries, 
so far as the assent of the United States is requir- 
ed, belongs not to the Executive, but to Con- 
gress. How, then, can he, in the first instance, 
either in due deference to the equal competency 
of Texas, or to the power lodged in Congress, 
alone undertake to determine the rightful boun- 
daries of New Mexico, and to maintain them 
with the sword r Is the distinction sought to . 
be made, that he only determines possession 
and means to maintain that? But whence derives : 
he authority at his mere discretion to fix the 
limits or determine the character of the posses- 
sion held of that Territory.' The possession of i 
that part of the Territory east of the Rio Grande 
as a right or even adverse possession is denied by 
Texas to be in the United States, and is claimed 
to be in herself. It is a most material point in her 
claim, and if established in her favor, would dispense 
with her other impregnable proofs of title, and 
determine the whole question m her behalf. Pos- 
session is a most material element of title — indeed, 
in defect of a better in another, is perfect title. 
Every lawyer knows the steps of title are — pos- 
session, right of possession, the right of proprietor- 
ship. Here two leading points of title — possession 
and right of possession, are determined by the 
Executive discretion alone, in despite of the admis- 
sion that the sole right to determine title for one 
party , the United States, is in Congress, and , for the 
other, with equal competency of action, in Texas. 
If the assent of Texas be necessary, is not such 
assent as essential to deteimine possession and 
the character of that possession, as any other 
element of title .' If the sole power of determining 
title for the United States be in Congress, is not 
its action indispensable as well to determine pos- 
session and its extent and character as to any 
other point of title.' Sir, this assumption of the 
Executive to determine possession, its character 
and extent, in consistency with other principles 
correctly avowed in his message, in effect for-, 
ever settles this whole question of title against 
Texas, unless she will accept such terms as may 
be dictated her by the United States. Possession 
alone gives usufruct — sufficiently long continued is 
indefeasible title. It is therefore in the United 
States equivalent to absolute enjoyment of the 
^hole — with certainty of ultimate perfection to her 
title, unless an agreement for the settlement of 
boundaries is had with Texas. Now in this state 
of things, of what benefit to Texas to admit the 
necessity of her assent? If she does not assent 
to such terms as may be proposed her by the 
United States, she is excluded altogether. Sup- 
pose a proffer made her on terms satisfactory to 



the rapacity of free-soilism, now dominant in this 
Congress. She refuses. She thereby only excludes 
herself from the pittance that may be offered, 
for though her assent is requisite, until it be given 
the United States engrosses all, and holds by force. 
This is indeed a shallow device to make your own 
terms or engross the whole. 

But, sir, it is asked. Is not the possession un- 
doubtedly in the United States? and is not the 
President bound to maintain it? Most assuredly 
not. There are troops of the United States there, 
but so there are in every State of the Union, espe- 
cially in those having frontiers neighboring on a 
foreign Power or exposed to Indian depredations. 
These troops can establish no civil jurisdiction. 
They are, as they are bound to be in time of peace, 
subordinate to the civil power. Texas is one of 
the States of the Union, and the possession of the 
General Government of any territory claimed by 
her, is naturally and persumptively her possession. 
Even more clearly is such the natural conclusion 
from the mere military occupation by the troops 
of the common Government. 

But, sir, we are not left to presumption here. 
We know that before the war with Mexico, 
Texas claimed this territory. Her claim by the 
compact of annexation is certainly recognized 
by the United States as running above 36° 30' 
north latitude. That compact retained to the 
United States the power of adjusting her bound- 
aries by treaty with other nations. But in the 
negotiations of Mr. Donelson, the obligation on 
the part of the United States to assert this claim 
and obtain it, if fairly practicable, by treaty, 
1 was certainly imposed. That effort was zeal- 
; ously made by Mr. Polk's Administration, and 
' the instructions given to our minister distinctly 
pointed to, and urged the establishment of the right 
1 of Texas to the territory east of the Rio Grande. 
Failing negotiation, the war was declared and 
fought, on the ground that Texas extended to the 
Rio"Grande,and that consequently Americati blood 
had been shed on American soil. No distinction 
was then attempted between the lower and upoer 
Rio Grande, as certainly none was made by this 
Government. By that war, this Government, in 
all its departments, was irrevocably committed be- 
fore the civilized world to the right of Texas to 
the Rio Grande; else was the war one of rapine 
and robbery, and the honor and justice of the 
Union irretrievably forfeited. When this terri- 
tory was invaded and occupied during the war, it 
was done confessedly in maintenance of the right 
of Texas, and in her behalf. The competency of 
the President, as commander-in-chief, flagrante 
i belU), to determine and declare the purposes of any 
.1 military expedition, and the quo animo with which 
I a country is invaded and held, can hardly be con- 
troverted. During the whole war, in his messages, 
and in a letter to the Governor of Texas in refer- 
ence to the possession of this very territory, his 
1 convictions as to the clear right of Texas and the 
auxiliary character of its military occupancy, were 
explicitly stated. And after the war, Mr. Polk's 
Administration gave positive orders to the military 
commanders in occupancy to facilitate and aid 
1 whatever efforts Texas might make to establish 
civil jurisdiction over it. Congress all this time 
I not merely acquiesced, but, so far as action was 
I taken at all, conformed to and sustained the vieyre 
.1 of the Administration. General Taylor's Admin- 



10 



istration modified the orders given to the com- 
manders, but only to the extent that they should 
take no part any way, in case of an effort by Texas | 
to organize the territory. They were not to in- i 
terfere against Texas, but so to arrange their i 
troops as to avoid conflict witii her authorities. , 
There may be reasons to apprehend that at a later ; 
day General Taylor's Administration had conclu- 
ded to proceed a step further, and discourage all 
such attempts at organization by Texas. Certainly ; 
there is no official committal by him to an adver- ' 
3ary holding, and the use of force to maintain it. 
The undivided responsibility of that position is , 
on the present Executive. Before this Congress, I 
while individuals may have asserted the existence 1 
of a controversy about the title of Texas to the \ 
Rio Grande, I affirm, with confidence, such con- I 
troversy was never recognized by this Govern- j 
ment in any of its departments; and except for I 
the stress rested upon it by distinguished Senators j 
who wished to make it an element to promote the 
passage of a system of obnoxious measures, it is 
very doubtful whether it would have ever been 
gravely insisted on. Certainly the first official 
sanction given to it is now by President Fillmore; 
and he originates, decides, and threatens to main- ' 
tain with force, an adverse holding of the whole | 
against Texas. In this he distinctly rebukes both 
his predecessors — Mr. Polk, who ordered the 
troops of the United States to aid Texas, and Gen- 
eral Taylor, who enjoined neutrality on them. If 
there be competency in the Executive to determine 
even primarily the possession of this territory, and j 
the nature and extent of its possession, surely ! 
during and after the war it pertained to Mr. Polk; | 
and his determination that the possession of the } 
United States was in subordination and aid of: 
Texas was conclusive. At least the decision of 
General Taylor not to hold adversely might be 
held binding on his successor; but Mr. Fillmore 
not merely claims the power to the Executive to [ 
determine the possession, but tohimself peculiarly, i; 
He makes no account of the action and decisions j 
of previous Presidents. I 

The next position of the President in the case 
presented by him is, that the treaty of Guadalupe 
Hidnlgp applies to and is in force as law in New 
Mexico, and that the Constitution requires him to 
execute it, and enforce its guarantees of liberty, 
property, and religion to the Mexicans residents j 
there. He gives no force or validity to any other {• 
Iowa or government, either civil or military, exist- , 
ing there, but disclaiming the authority to estab- 
lisn such in himself or the people there, rests his 
obligation on the. Constitution and treaty alone. 
This involves a claim on the phrt of the Executive 
both to interpret and enforce a treaty. The start- 
ling character of such an assumption has been ex- ': 
posed and enforced with such ability by the gen- 
tleman from Georgia, [Mr. Stephens,] that I , 
merely refer to it. It certainly confounds the dis- : 
tinctions between the judicial and executive de- ^ 

Sarlments, and engrosses the powers of both in ,, 
Ir. Fillmore. In many, perhaps most cases of|; 
treaties, the obligiition of providing for their en- h 
forccment by low rests on the legislative 'iepart- | 
ment, and the principle, extended to such, would 
make the President dispense with Congress as 
readily us he r">ropiiMea to ilifregard the Judiciary. 
Rut. riHsoningon the Presdcnt'd premi.^'es, how 
will the treaty or \U guaranteea be violated or en- 



dangered by the extension of the jurisdiction of 
; Texas over New Mexico? To maintain them, 
; why must Texas be excluded by force? Tha 
j treaty makes no special allusion, nor imposes any 
' peculiar obligations in relation to New Mexico, 
it merely draws a line of demarcation between the 
whole territory ceded the United States and Mex- 
ico, and the guarantees to liberty, property, and 
religion, apply alike to the Mexicans residing in 
any part, whether on the Lower Rio Grande, in 
New Mexico, or California. Texas, as one of 
the States of the Union, is fully bound to respect 
and enforce the treaty. The extension of her 
I jurisdiction, by bestowing the protection of a re- 
i publican end State government, and insuring the 
j aids of judicial process, and the regular adminis- 
tration of justice, might indeed facilitate the execu- 
I tion of the treaty, and the enforcement of its guar- 
! antees. But unless the laws and judicial proceed- 
' ings of Texas militate against liberty, property, 
land religion, how can her jurisdiction conflict with 
j the treaty and its guarantees ? To pretend so is 
I reproach and insult to Texas, as gratuitous taa un- 
I founded. But if the possession of Texas be incon- 
' sistent with the treaty, in what position does the 
President place himself? Her jurisdiction has been 
extended, and actually exists, over large portions 
I of territory on the Lower Rio Grande, not in her 
\ possession before the war, and equally with New 
I Mexico embraced in the terms of the treaty. His 
I obligation to execute its guarantees are the same 
I there as in New Mexico. Will he employ the 
I militia and military force of the Union to oust her 
there? On his grounds he will be under solemn 
obligation so to do, and he must wage war to dis- 
possess her. 

Again: If her jurisdiction be inconsistent with 
the treaty, what mockery to profess that her assent 
is necessary to the settlement of boundaries, and 
that her claim may be allowed by Congress or by 
legal adjudication. The treaty is binding on both 
Congress and Texas, and if its guarantees preclude 
the admission of her jurisdiction, she must in any 
event be excluded, and the President, under his 
sense of obligation to execute it as the supreme 
law, must take care that she be forever debarred. 

But further: If the jurisdiction of Texas, a State 
of the Union, be inconsistent with the treaty, how 
does it stand with California? All the territory, 
the best part of which has been engrossed by that 
so-called State, is equally embraced by the treaty 
and its guarantees. The Mexicans there are 
equally to be secured in liberty, property and reli- 
gion; yet tiic jurisdiction of that pretended State, 
formed by hordes of adventurers from every clime, 
of every race, complexion, and language, certainly 
without authority, and, as I think, by palpable 
usurpation, is established and recognized. Surely 
the jurisdiction of Texas, a Stale in the Union, 
cannot be more inconsistent with the treaty than 
that of California, an usurper, not even admitted 
aa a State, whose first acts, from authentic informa- 
tion, have been to abolish peonage, an established 
right among the Mexicans, and to lay impositions, 
felt by them as most oppressive and exacting. 
There might, indeed, be just pretence that her ju- 
risdiction afforded no adequate guarantees of lib- 
erty, property, and religion, to the resident Mexi- 
cans. But her authority is ncknowledged, and the 
sanction of Congress ifcommended to be eiven to 
it by her admission, while the jurisdiction of 



II 



Texas is to be resisted with the sword, as subver- 
sive of the treaty and in conflict with the liberty, 
property, and religion of the Mexicans. In such 
preposterous inconsistencies is the President in- 
volved. 

In this connection I had intended, Mr. Chair- 
man, to expose the sophistry and special pleading 
used by the Secretary of State to palliate the pro- 
ceedings of the officers and people of New Mex- 
ico, in their late unauthorized proceedings to form 
a constitution and government. I do not under- 
stand him to justify them, for I am happy to see 
he pronounces their proposed government a nul- 
lity. My time, however, will not allow, and I 



necessity, and, as I shall have to show presently, 
in aid of the courts and marshals of the Union. 
Where the combinations arose in a State possess- 
ing all the machinery provided for the maintenance 
of law and order, and became, notwithstanding all 
such restraining influences, too powerful for the 
ordinary means of judicial repression, there might 
be reason and justice in supposing they could only 
be put down by the strong arm of force. Besides, 
the courts of Territories are not strictly courts of 
the United States; and being intended in aid of 
them, the law could only properly extend to States 
where such courts existed. These would seem 
sufficient reasons for the restriction; but whether 



proceed to the only further position assumed by ^ so or not, the restriction is explicit, and cannot be 



the President to sustain his proposed course. It 
is, that by the acts of February 28, 1795, and 
March 3, 1807, he is empowered to employ in the 

E resent case the militia and military forces of the 
'nion. I deny this wholly. In the first place, 
the authority to call out and employ the militia is 
by the law of 1795, limited expressly to the case 
of obstructions to the execution of the laws of the 
United States in a State. It has no application to 
any Territories whatever, much lees to one with- 
out organization or civil government, as New Mex- 
ico. The language of the law in the only section 
applicable, is: " Whenever the laws of the United 
' States shall be opposed, or the execution thereof 
'obstructed, in any State, by combinations too 
' powerful to be suppressed by the ordinary course 
'of judicial proceedings, or by the powers vested 
' in the marshals by this act, it shall be lawful for 
' the President to call forth the militia of swc/i State, 

* or of any other Slate or States, as may be neces- 
' sary to suppress such combinations and to cause 
' the laws to be duly executed," &c. 

The law of 1807 only authorizes the President, 
" in all cases of insurrection or obstruction to tlse 
' laws, either of the United States, or of any indi- 
' vidual State or Territory, when it is lawful for the 
' President to call forth the militia for the purpose 
' of suppressing such insurrection, or of causing 
' the laws to be duly executed, to employ for the 

* same purposes such part of the land or naval 
' force of the United States as shall be judged ne- 
' cessary, having first observed all the prerequisites 
' of the law in that respect." This law clearly 
confers only the power to use the military force in 
aid of the militia, when oy existing laics they can 
be employed. It enlarges the force tiiat may be 
used, not the cases in which it may be applied. 
It can, therefore, not extend the operation of the 
law of 1795 to cases not covered by it. It is true, 
this law of 1807 mentions Territories, but before 
force can be employed there, laws authorizing the 
employment of the militia in them must be found. 
This may, perhaps, be furnished in organized Ter- 
ritories in the bills establishing them, or in the acts 
of the territorial legislatures under them. It cannot 
be extorted from the law of 1795, which is alone 
relied on by the President; and certainly in the 
case of New Mexico, no authority can be adduced 
from any law organizing that Territory, or from 
any territorial legislation in pursuance of it. By ! 
the only law pretended to be applicable — that of [ 



1795 — the power conferred can only be exercised 

in a Stale. Adequate reason for this restriction ji the regular administration of law 

may be found in the consideration that such high >' according to the President's own ai 



gotten rid of by construction. As a law against 
life and liberty, conferring extraordinary powers 
for the use of force on the Executive alone, every 
consideration and legal rule requires its strict con- 
struction. But to establish the restriction to States, 
its plain language and intendment are only needed 
and insisted on. Considering, then, the power to 
employ the militia and military force limited to 
cases in a State, the President is wholly unautho- 
rized to use either in New Mexico, unless upon 
the admission that it is part of Texas. Such ad- 
mission would be utterly subversive of the pre- 
tence of unlawful combination at all, and conclu- 
sive against every justification of his menaced 
coercion. 

A graver objection still exists, Mr. Chairman, 
to the construction given by the President to the 
acts of 1795 and of 1807, as authorizing him in the 
present case to employ f^orce. It has been exhib- 
ited and illustrated by the gentleman from Geor- 
gia, [Mr. Stephens,] with such fullness and abil- 
ity, that I am justified in adverting to it with more 
brevity than its importance would otherwise allow 
It is, that the whole law is only ancillary, in aid 
of the States, and upon their call in case of insur- 
rection, and in aid of the judicature and the mar- 
shals in the administration of the laws of the Uni- 
ted States in case of resistance or obstruction in a 
State " by combinations too powerful to be sup- 
pressed by the ordinary course of judicial pro- 
ceedings, or the powers vested in the marshals." 
The purpose of the law was only to bring the 
military in aid of the civil power. The President 
has totally misconceived the extent and nature of 
the powers conferred on him in undertaking to 
determine, first, the existence and extent of the 
application of a treaty; then to expound its obli- 
gations, and directly, under pretence of this law, 
to execute its provisions, as so interpreted, by 
force. Rights arising under this treaty, as under 
any other law, must be adjudicated, not by the 
President but by the courts. Judicial process in 
execution of them must be resorted to and en- 
forced by the marshals. He must see them duly 
carried out, and in this way fulfill his constitu- 
tional duty " to take care the laws be executed." 
Only when laws are so opposed, or the execu- 
tion so obstructed in any Slate, that they cannot 
be thus enforced, can the extraordinary power of 
these acts of 1795 and 1807 be invoked by him? 
Now, how, in the case of New Mexico, can it be 
pretended that such obstruction or resistance to 

exists, when, 
dmissions, there 



and extraordinary power was not intended to be ij is no civil government of lawful authority — no 
conferred except in cases of palpable and urgent i courts nor marshals of the United States within 



12 



it? Would It not be monstrous that citizens of 
Texas, actin? under her positive authority , siiould, Ij 
on the mere fiat of the President, be shot down for l! 
acts for which there is no penalty affixed by law, j 
and no courts authorized to fry them ? This con- ; 
struction of the President strikes at the very foun- | 
dation of civil liberty — that no man shall be '• de- L 
prived of life, liberty, or property, except by the I 
judgment of his peers and the law of the land." 
It arrogates in his single self judicial and execu- ] 
live powers, and makes him both judge and exe- | 
cutioner. In addition, the right to employ at dis- ; 
crelion the militia and military of the Union may ; 
involve unlimited expenditure. By this claim he ] 
at once commands the purse and the sword of the I 
Union. Such powers would be despotic. I 

And whence, Mr. President, come these extra- 
ordinary claims to concentrate powers in the Ex- 
ecutive? From a Whig President. Sir, if there' 
be u principle at the basis of the Whig organiza- 
tion, on which they claim their distinctive name, | 
time-honored in its association with the struggle i 
of liberty against prerogative, I thought it was j 
atern opposition to the encroachments of Execu- 
tive power, n with Mr. Fillmore's party, there 
be remembrance of past professions, or adherence | 
to fundamental principles, must not the force of i 
truth as to his present positions " unwhig him for 
life." 

What, in conclusion, Mr. Chairman, is the ex- 
planation of the strange pretensions, inconsisten- 
cies and errors of this message? Can any one 
doubt it is to be found in the fixed design to make 
or force a case for buying or robbing Texas of a 
large part of the territory belonging to her? Un- 
der her jurisdiction, that limited portion of our ac- 
quisitions from Mexico may be enjoyed by slave- 
holders, and the barriers of State authority, which 
is yet affected to be di.^putod, must exclude the ap- 
plication alike of the Wilmot proviso and of the 
safer jugglery which has been substituted for it. 
The lustful rapacity of freesoilism is roused and 
pledged to engross, by bullying or bribing, the 
territory, which else the jurisdiction of a slave- 
holding State must insure to southern institutions. 
Would such a controversy as this with Texas 
about territory, claimed so long and with so many 
recognitions by our Government of her right, ever 



have been made with any northern non-slaveholding 
State ? I appeal with confidence to the convictions 
of all who hear me, if a similar case of bound- 
ary had arisen wiih .Maine, or with Michigan, 
v/ould there have been even conirover.sy respect- 
ing it' The territory would have been yield- 
ed without delay or hesitancy to the State. 
As a portion of the State claiming it, it would 
have still swelled the power of the Union. No 
one would have dreamed of making war on a 
State, or paying her millions to secure to the 
United Stales the mere proprietary right in vacant 
wastes, which would hardly even return the costs 
of surveying and selling. Sir, the case is too plain. 
The driveling idiot might almost comprehend it. 
And will the South aid or acquiesce in such rapa- 
city and extortion? Aggression after aggression, 
«t first covertly, then openly, has been made on 
her rights — on the privileges of her States and peo- 
ple to equality and protection under the common 
government of the Union. They bave been yielded 
to with the vain hope of peace and harmony. Con- 
cessions have invariably been followed by demands 
more insolent and encroaching. The whole legis- 
lation of our common Government is sought to be 
directed in invidious discouragerpent and discrim- 
ination against our institutions ahd property; and 
to this aim it appears are likewise directed the po- 
tent agencies and influence of the Executive. To 
the progress of this great and growing danger, 
there must be arrest, else the institutions of the 
South, and with them all the momentous interests 
of security, prosperity, and progress, dependent 
on them, must ultimately succumb. At what 
point the South will turn and repel such dire 
wrongs, it is with her people to decide. My con- 
viction is, that dangers gather round her the more 
she " tarries by the way." If she wishes to pre- 
serve this Union by making it reconcilable with 
her safety and her honor, she cannot too soon and 
too emphatically manifest her resolve further to 
concede no right, and endure no wrong. She has 
elements of power, of production, of prosperity, 
which, in the keeping of a free and brave people, 
whether in or out of this Union, insure her respect, 
influence, and safety. 

'• Thr fault is not in our stars, 
But ia oumelves, that we are underlings." 



LIBRftRY OF CONGRESS 



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